Court: Woman can't sue high school over abuse by employee

By Stephanie

Detroit Legal News

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Appellate court rules public schools not held liable under state’s child sex abuse law

By Bruce ShipkowskiAssociated Press

TRENTON, N.J. (AP) — A woman who said she was raped several times by an assistant marching band director at her New Jersey high school can’t sue the school, according to an appellate court ruling that found public schools weren’t meant to be held liable through the state’s child sex abuse law.

The woman was a junior at Southern Regional High School in Manahawkin and the daughter of its band director when she said Gregory Smith first assaulted her in 2000, according to court documents. She said Smith continued to assault her over the next several months, including at her home and when the band traveled out of state for competition.

It wasn’t until 2014 that she filed a lawsuit, citing the state’s child sex abuse law and a state Supreme Court ruling that private boarding schools can be held liable if such acts occur “within the household” while a teacher or other adult was responsible for the child’s welfare.

But the appellate court ruling issued this week said there’s no indication the Legislature intended for that provision to apply to public schools. The panel also found the woman missed deadlines to file a notice of her intent to sue. Her suit sought unspecified compensation for physical and psychological damages.

The woman is identified by only her initials in the suit, and The Associated Press generally does not name people alleging sexual assault unless they give their consent.

The woman told her parents about the assaults after she became pregnant, which caused her to faint during a performance. She eventually had an abortion.

The woman said she was locked out of her family home when she turned 18, forcing her to live in her car. She also developed an addiction to opioids and started seeing a psychologist who diagnosed her in July 2013 with post-traumatic stress disorder and depression.

Smith was charged in 2014 and pleaded guilty later that year to criminal sexual contact with a 16- or 17-year-old, according to court records. He was sentenced to 157 days in jail and two years of probation. An attorney who represented him in the case didn’t return a phone call seeking comment and a number for Smith couldn’t be located.

After the woman sued Smith, the school and other defendants in 2014, the school argued it wasn’t liable because it wasn’t considered the plaintiff’s “household.” In New Jersey, boarding schools are considered households because they have the responsibility of ensuring students living there are safe.

She contended that the “household” rule should have applied to the school because her father held marching band meetings at the family’s home, where Smith sometimes stayed as a guest of the family.

Robert Fuggi, a Toms River lawyer who represents the woman, said he believes that all of the elements that the state Supreme Court cited in the earlier decision were present in this matter. Fuggi said that he is encouraging his client to take her case to the state Supreme Court, but that the decision is up to her.

Fuggi said he thinks the case is a good reason for the Supreme Court to look back at the sex abuse law to “see if they want to expand it or include public schools.”

“We think public students are now at disadvantage, because equal protection under the law means they deserve that protection,” Fuggi said.

Jerald Howarth, the high school’s lawyer, did not respond to a message left with his office.

The sex abuse law stems from the state Supreme Court’s 2006 ruling in Hardwicke v. American Boychoir School, in which the court ruled that churches, schools and other charitable organizations can be held responsible for the intentional acts of their employees.

Frank Belluscio, spokesman for the New Jersey School Boards Association, whose group did not participate in the case that resulted in this week’s ruling, said it was still reviewing the case. It plans to make a report to its members.